Lisa Harris (lrph) Thu 19 Jul 07 12:31
I don't think anyone thinks that murderers and rapists should walk the streets with a slap on the wrist. But the governing Through Crime has more to do with a pervasive attitude that crime is so prevalent and we have to protect the victims and potential victims from the criminals and potential criminals. That our reasoning for the laws themselves are because of crime, rather than what is good and right.
Jack King (gjk) Thu 19 Jul 07 12:49
I would never let the prosecutor or govt witnesses use the word "victim" in front of a jury. It is quinessentially prejudical, as in most crimes there is no "victim" until a jury finds that a crime has in fact been committed. "Complainant" or "complaining witness" work just fine.
Lisa Harris (lrph) Thu 19 Jul 07 16:03
That sounds like you're a defense attorney. and in that vein, you would be correct. I am currently reading a book about Youth Sports (for a future inkwell interview) and there is an example of GTC that I think explains the concept well. In the past few years there has been an increase in violence against parents, coaches, referees and even children playing youth sports. Because of this 21 states have passed specific laws regarding violence in youth sport related veins. The fact is, each of these states already had laws dealing with violence. Now, we are governing our sports programs through crime (you can or can not behave this way) rather than letting the sports programs be sports programs, and if/when violence erupts deal with it as the isolated issue it is.
Jonathan Simon (jonathan-simon) Thu 19 Jul 07 17:18
Governing through crime begins when we start treating matters as crimes primarily because it is an easier (politically, economically, legally, or for many reasons) way to govern them, rather than because the underlying behavior is so alarming or damaging or offensive, that it calls for the stigma and the pain involved in criminal punishments (I'm not claiming there is an utterly determinate set of true "crimes" but only that competent members of our culture can at least deliberate on the answer to that). Let me give you an example that is a hard one in the sense that I'm not sure what to do. The untreated mentally ill (whether do to refusal to take medication or inability) who roam many of our cities often find themselves in the criminal justice system because their behavior is alarming to residents and because it technically violates laws and ordinances that we roughly call "quality of life" laws, like those prohibiting urination in the park, etc. Our large jails are becoming the major asylums in our societies and prisons are not far behind. While almost everyone agrees this is a terrible result that leads to tragic deaths (read Mary Beth Pfeiffer's Crazy in America) and greatly increases the management difficulties faced by police and jail personnel, nobody has a good alternative. The only serious reform effort underway today involves improving the mental health intelligence of courts and jails, through jail based clinicians and mental health or behavioral health courts that bring clinical knowledge into their case management (the Bay Area is very good in this regard). Moreover, many families of the mentally ill welcome arrest as the only way to get their loved ones off the streets and into treatment. Isn't their an alternative way to govern the untreated mentally ill other than to arrest them and hope they end up in a humane therapeutic court of some sort? We could invest hugely more in settling the mentally ill homeless into treatment oriented residential settings where the vast majority would be much more likely to take their meds even if you didn't force them. But there is no political support for this kind of expansion of the welfare state. Indeed, Governor Schwarzenegger's recent budget would cut millions for such programs. We could go back to allowing civil courts confine the mentally ill in asylums (or even community based but mandatory treatment programs) on the motion of family members or guardians (or the police) but to do so would require major statutory and possibly constitutional changes. It would also raise at least the specter of a return to the abuses of the past when asylums were almost as full as prisons are today (and just as empty of treatment), and people were sometimes confined for being "difficult" (including prematurely feminist housewives back in the 50s and earlier). My own preference would be some combination of a welfare and strong civil governance model. I think we could guard against the abuses of the past through drafting in careful safeguards for the liberty interests of the mentally ill and design efficient community based programs that would be less costly then jail and prison. But I have to acknowledge that the political and even constitutional barriers are formidable. For the forseeable future more humane therapeutic courts, jails and prisons are probably the best goals we can attain, and that means governing the problem through crime. Let me take another example (just to get things going in a number of directions). We clearly cannot agree as a polity on what to do about immigrants who are in the US either without lawful entry papers, or in a status that violates the terms of those visas (they are working a tourist or educational visa). All Americans clearly benefit in some ways from the labor produced by those immigrants. Some are clearly hurt in their economic prospects and some would argue that we are all hurt by the flouting of our national entry laws. As the recent immigration bill debacle demonstrated, their is neither consensus on what to do about this nor even much clarity on what institutions could effectively negotiate an acceptable compromise. So in the absence of an effective policy to govern immigration and the labor markets of the US what has emerged is, you guessed it, governing immigration through crime. Since the 1990s we have steadily ratcheted up the use of crime as reason to remove even legal resident aliens from the US without substantial opportunity for courts to consider equitable considerations (e.g., a legal resident alien who has lived in SF for 25 years since he moved here from El Salvador at age 4 and is arrested with a small amount of marijuana may be subject to only a fine or perhaps probation in criminal court, but is treated as an aggravated felon for purposes of the immigration code and is subject to mandatory detention until deportation, even he has a wife and four US citizen kids). As recently detailed in a series in the NYTimes, aliens, both legal and illegal, who are found to have violated immigration rules increasingly find themselves in custody in actual jails and prisons (even though its supposed to be "civil custody"). As towns and cities express anxiety about immigration, more local police are being asked to use criminal law to arrest immigrants and even landlords who rent to them. I have no easy solution to the problem of unregulated immigration and the labor market that comes to depend on access to such labor, but I am convinced that governing this problem through crime, as we are doing is both cruel (it subjects all kinds of good people to the risk of imprisonment and of crossing a highly enforce border --- see Babel if you haven't). Also, by defining the undocumented as criminals (to which are added "criminal aliens") we actually make it harder to negotiate the complex compromise we must ultimately reach by encouraging US citizens and legal aliens to think of themselves as innocent victims rather than as participants with complex relationships to both the costs and benefits of unregulated immigration. While I do not have a solution, I have a theory that allows me to at least choose among solutions. Put simply, I'm against any approach to addressing the immigration crisis that treats either the undocumented or their employers, landlords, etc. as criminals or with imprisonment of any kind. I'm for solutions that move us toward developing other handles on the problem. Example, if we had national health insurance that was not employer based, we could enforce a requirement that employers pay special taxes into the health system to cover the costs of the undocumented they hired (who are not already covered by the system). This would go a long way to reducing the low wage economic incentives to hire the undocumented, while giving us a civil handle the flow of such immigrants (who would not have to hide). Enforcement would focus on payment not on the status of who you hired. Yes ultimately, an employer that flouted the tax and refused to pay might have to go to jail, but not for hiring the wrong kind of people, for cheating the health care system. More later on what I would reserve criminal law and punishment for.
Michael E. Marotta (mercury) Thu 19 Jul 07 19:23
Thank you, professor. (Actually, in the German style, "Doctor Jurist Simon" once for the Ph.D. and once for the JD ... and the WELL blurb failed to mention "associate dean.") Back to that, later. re Lisa Harris in #53 -- One would think that "larceny" is pretty much a crime on its own merits, but, here in Michigan, it seems that mere "larceny" needs some help. At my community college, my instructor for criminal law and constitution law was actually from Ohio, down the road a piece, and she would make fun of Michigan by saying that larceny from a blueberry patch is a separate crime here. From Michigan Compiled Laws: Section 750.356 Section Larceny. Section 750.356a Section Larceny; motor vehicles or trailers; aggregate value; prior convictions; breaking or entering; damaging. Section 750.357 Section Larceny from the person. Section 750.357a Section Larceny of livestock. Section 750.357b Section Committing larceny by stealing firearm of another person as felony; penalty. Section 750.358 Section Larceny at a fire. Section 750.359 Section Larceny from vacant dwelling. Section 750.360 Section Larceny; places of abode, work, storage, conveyance, worship and other places. Section 750.360a Section Electronic or magnetic theft detection; shielding merchandise prohibited; violation as crime. Section 750.361 Section Larceny or maliciously removing journal bearings or brasses. Section 750.362 Section Larceny by conversion. Section 750.362a Section Larceny; rented motor vehicle, trailer or other tangible property; penalty. Section 750.363 Section Larceny by false personation. Section 750.364 Section Larceny from libraries. Section 750.365 Section Larceny from car or persons detained or injured by accident. Section 750.367 Section Taking or injuring trees, shrubs, vines, plants. Section 750.367a Section Larceny of rationed goods, wares and merchandise. Section 750.406 Section Military stores, larceny, embezzlement or destruction. Section 750.411j Section Definitions. Section 750.529a Section Carjacking; felony; penalty; in the course of committing a larceny of a motor vehicle defined; consecutive sentence. Section 750.530 Section Larceny of money or other property; felony; penalty; in the course of committing a larceny defined. Section 750.531 Section Bank, safe and vault robbery. I like them all but you gotta love 750.530 which says that stealing money while you are stealing something else is also a crime... I mean, myself, I would have thought, you know... or 750.361, theft of journal bearings (http://en.wikipedia.org/wiki/Journal_bearing). I mean, if you steal the box car surely that must be a crime, even if you leave the bogey. But what happened (back to #53 and Det. Ruth Walsh's blueberry patch), is that everytime there was a "problem" someone with a connection to a state representative got a special law passed. Chicago Nobel Prize winner Ronald Coase (http://en.wikipedia.org/wiki/Coase) suggests in THE PROBLEM OF SOCIAL COST that it is better to let people pay you for the privilege of violating your rights, than to pass laws against the violation of your rights.
Doug Masson (dmasson) Fri 20 Jul 07 07:23
One problem is that when something bad happens, government --- legislators in particular -- are pressed to "do something." Well, when the only tool you have is a hammer, the whole world starts looking like nails. Government has tools aside from the criminal law, but they're harder to use and more subtle.
Lisa Harris (lrph) Fri 20 Jul 07 12:38
I vote for public ridicule!
Michael E. Marotta (mercury) Fri 20 Jul 07 14:11
When you look at initiatives such as the National Institutes of Health, the Centers for Disease Control, NASA, HHS, and so on, it is clear that government can take action without the excuse of fighting crime. One problem goes back to an early post as well as to the root of government: what is government for if not to fight crime? In other words, Aristotle and Plato never deeply questioned this. Hobbes and Locke agreed that people get together for self-defense, surrending some freedom of action in return for protection and justice. It was Max Weber who succinctly said: Der Staat ist, ebenso wie die ihm geschichtlich vorausgehenden politischen Verbände, ein auf das Mittel der legitimen (das heißt: als legitim angesehenen) Gewaltsamkeit gestütztes Herrschaftsverhältnis von Menschen über Menschen. -- (The state is, like the political associations that historically preceded it, a power structure of people over people, based on the legitimate (i.e. as legitimate perceived) use of violence. -- aka "Calopteryx Splendens") http://www.textlog.de/weber_politik_beruf.html As a conservative and libertarian, I would have agreed that the only valid purpose of government is to protect the rights of its citizens via police (and army) and courts of law. However, I have also known for many years that private agencies can provide those services better than the government can. So, my viewpoint is now closer to a claim that the government should undertake that for which there is no market... going to Mars, unraveling the genome, getting sex education, birth control and prenatal care alike to those who need them most, regardless of ability to pay. Nice as all that sounds, however, each of those has its own attendant problems. In the mean time, as our guest host points out, it is far easier to get action -- any kind of action -- on something that is a "crime."
Jonathan Simon (jonathan-simon) Fri 20 Jul 07 21:48
I argue in the book that Governing through Crime has been created by both liberals and conservatives and betrays the values of both. This is pretty controversial. Most of the others who write about the war on crime see it as an arm of the Republican Party and the conservative movement. I argue in my book that it begins with liberal Democrats like Robert Kennedy and LBJ. While conservatives were able to use crime as an effective way to criticize the welfare state (for creating an underclass), liberals supported the expansion of the war on drugs and mass incarceration as well. Both now find their central values, equality for liberals, liberty and autonomy for conservatives, endangered by the logics of governing through crime. Its worth saying something now about what kind of uses of criminal law I would support. A useful though experiment is to imagine that in 1973, at the height of the Watergate scandal, the military had seized power. Imagine that thirty years later they restored constitutional government and we were now in the midst of a transition to democracy. Clearly we would still want to have a military, but we would want to change it root and branch to assure that it never again sought to usurp the space of democracy. I believe we did experience something like that with the war on crime. It was carried out by elected leaders so it does not appear to be a break with constitutional democracy, but as a result of governing through crime, democratic institutions are now distorted and undermined. Were we to get our democracy back, we would still want a criminal justice system but a very different one that would not pose a risk of overreaching again. This new criminal justice system would be organized around three principles. First, we would eliminate the vast corpus of preventive criminal law developed in the course of the 19th and 20th centuries which in the name of intervening early to prevent more serious crimes, has given law enforcement broad discretion to arrest those perceived as dangerous, discretion that is almost always used to over punish the poor and racial minorities. I would reduce the reach of the criminal law to two major categories of crime, assaults on the person (violence), and taking of property through force or fraud. Lots of bad stuff, drug abuse, prostitution, gang activity, would have to be governed some other way. Second, criminal convictions should only be imposed after a public hearing of the evidence. Today more than 95% of all criminal convictions are produced through a negotiated plea of guilty without a public trial. One of the historic purposes of the criminal trial was to produce an accepted narrative of events. A violent crime like homicide or rape can create ambiguity about what actually happened in ways that harm the victim and the community. The trial is a way of establishing a public narrative of what happened. The goal of putting people in prison efficiently has all but replaced the goal of producing truth and community awareness. I would restore truth to its rightful place as the major purpose of criminal process. Even if someone admitted guilt, the public has a right to know what happened and that the police have properly gathered evidence. Third, the scale and severity of our use of imprisonment today is a modern scandal. Today about 500 Americans are in prison for every 100 thousand free people. For most of the 20th century the American rate was closer to 100. In Europe today the highest rates are approximately 100. Despite the intention that prison would be a humane and rehabilitative method of punishment it has repeatedly proven itself to be subject to gross abuse and to be ineffective as a means of improving the character of people. Prison should be limited to those whose propensity for violence cannot be reliably contained otherwise. Most other people convicted of the more modest criminal law I envision should be punished with a combination of stiff fines (calibrated to their actual wealth), publicity, and restorative justice to assure that the victim will be protected against future assaults.
Doug Masson (dmasson) Sat 21 Jul 07 05:14
Good luck collecting those fines. I think you'd end up just imprisoning those folks for not paying their fines. (Says the debt collector.)
Lisa Harris (lrph) Sat 21 Jul 07 08:00
I think a large problem is that people expect that they can get away with things until they're arrested and jailed. So, as for fines (or public ridicule) it really doesn't seem to work because our ethics as a society say we can do it because we can do it. If you don't like it, stop me. And the only effective way we have come up with to battle this obnoxious self- serving, anti-social behavior is to jail people.
What is going to amuse our bouches now? (bumbaugh) Sat 21 Jul 07 14:08
(And this reminder: if you're reading this, interested to comment, but not a member of the Well, you are welcome to e-mail email@example.com to contribute, and we can post on your behalf.)
Jonathan Simon (jonathan-simon) Sat 21 Jul 07 15:39
I'm amazed at the grip the prison has on all of our imaginations. As Lisa noted, it doesn't really feel like punishment unless it involves locks and bars. What other area of our lives can you think of where the advanced technology of the late 18th century remains the advanced technology of the early 21st century (and seems more popular then ever). It helps to recall that for a long time people used to a good show of pain and torment for criminal on the scaffold (if not death than cheek splitting, flogging, etc.). Prisons were for debtors, vagrants, and the mentally ill. Now we can't imagine punishment without the clang of metal on metal. Europeans use fines much more than the US does. The fines we use are either too lenient (for the rich) or too severe (of the poor). In Europe fines are often scaled to reference actual wealth. We need to get more creative. Imagine a special enforcement force kind of like contemporary parole or probation officers whose job it was instead of checking urine for drugs, to check in on convicted criminals sentenced to a fine and seize any new assets they have (nice Jacket, hand it over buddy). Also don't underestimate the power of publicity. As online communities, like the Well, have shown, reputation matters when people can easily learn of and respond to misbehavior by identifiable persons. This is even more true in an economy where more and more of us are self employed. Imagine if you are convicted of fraud and you are engaged in selling stuff on line. That leads to what may seem a very bizarre idea. In an age of transparency and great concern for personal ethics and integrity, offenders may actually seek out institutions that can "rehabilitate" them in the eyes of their fellows. The state would not need to have a monopoly on this kind of rehabilitative work. So imagine our friend convicted of fraud in his internet sales. If it is easy for all potential buyers to learn of this past bad behavior, he's ruined. He might have to go to a reputable company engaged in ethics training and cognitive behavioral therapy. Under the Utopian Penal Code that I imagining, he might, if he successfully completes the training, have a permanent link attached to his conviction page that would inform potential buyers of his rehabilitation. Utopian? May be. But considering that more than 2/3 of people who leave California's hellish prisons (Golden State Guantanamo in my terms) come back.
Sharon Lynne Fisher (slf) Sat 21 Jul 07 17:14
I don't know exactly what my question is, or even if it is one, but it's interesting to me how much of a meme it is, being part of jokes on tv and everything, that one of the things that happens in prison, and one of the worst parts about prison, is homosexual rape.
Cupido, Ergo Sum (robertflink) Sat 21 Jul 07 22:33
Glad to see Max Weber being entered into the discussion. And to think his observations are nearly 100 years old.
Doug Masson (dmasson) Sun 22 Jul 07 06:42
How much of the popularity of prisons do you figure has to do with the increased mobility of the population? (And, I mean physical mobility, not social mobility.) Not too awfully long ago, in historical terms, most communities were fairly small and fairly stable. You knew who people were. Reputation mattered and you could be suspicious of strangers without impeding the community too much because strangers were relatively rare. Consequently, punishments that affected a wrongdoer's reputation was effective in terms of deterrence and effective in terms of protecting the community (because they were alerted to the fact that the person was bad news.) Now, strangers are more the rule than the exception. Wrongdoers who become notorious in one community can fairly easily move to another where they're not well known. Physical restraint seems necessary to prevent someone from simply packing up and moving away from the consequences of their actions. Just a thought.
Jack King (gjk) Sun 22 Jul 07 08:54
When communities were small, crime happened in the dark. This is still true in fairly "utopian" communities in Micronesia, where tramp steamers visit only once every three or six months, generators and gasoline are rarely used for electric lighting, and nobody sends or receives any mail from off- island. And though there is little real crime (not much property to steal, and murder is pretty rare), shit still happens. When the community gets larger, then people want police to protect them. Here's one of my all-time favorite philosophers on crime and government: "How the Law Got Started" transcribed from Lenny Bruce's last concert, Fillmore East (S.F. CA), 7/25/1966 (condensed, typos mine): "We oughta have some rules. Some laws. We'll sleep in area A. We'll eat in area B. We'll crap in area C. We're all agreed, fine. Now a guy wakes up with a face fulla crap. POW! 'HEY! WHAT'S THE DEAL? AM I SLEEPING IN THE WRONG PLACE? I GOTTA FACE FULLA CRAP!' 'I dunno ... we all voted on it, and agreed ... you crap over here.' "We got a constitution, we agreed on it. We need a remedy -- I got it! If anybody throws any crap on you while you're sleeping, they get thrown in the craphouse. That's the remedy. That'll keep the crap off us.... "Now some of you guys, you work out in the fields, you throw these guys in the craphouse, you never have to see them again. But I gotta sell cars to some of these people. Now, when I throw a guy in the craphouse, he gets out and I go to see him a car, and he goes 'Crap you! You threw me in the craphouse!' So I can't sell him a car. So we gotta get somebody to throw him in the craphouse but me. We gotta get somebody who will enforce the law, some kind of department to do that. "We find out with no law, we crap on each other. The only thing that can save us is some kind of law. And we got to get somebody to enforce it. So we interview -- here's a job, fellas. We wanna get some sleep without getting crap on us. But look -- don't do it in front of me. Now, here's a stick and a gun, and you DO IT."
Sharon Lynne Fisher (slf) Sun 22 Jul 07 10:12
Oh, that's wonderful. I've never heard that one before. I wonder if I can find a way to cite it in an MPA paper before I graduate...
Jack King (gjk) Sun 22 Jul 07 10:18
The routines longer, and I left out some choice lines. I could e-mail you a MP3 I guess -- have to convert it -- and you might look for a nugget or maybe just reference it.
Lisa Harris (lrph) Sun 22 Jul 07 13:39
In the NYT Magazine today there is an excellent article about youth sex- offenders and making their identities known via the internet web sites that alert us to adult sex offenders. The last line of the article sticks in my head, "As Elizabeth Letourno told me recently, 'If kids can't get through school because of community notification, or they can't get jobs, they are going to be marginalized.' And marginalized people, she noted, commit more crimes." It is the same with marginalized adults. The more criminals we create with our laws, the more crime will be committed. I don't know how to resolve the issue between this and the desire to punish wrong-doers, but there must be a better way.
Jack King (gjk) Sun 22 Jul 07 13:39
Having read Prof. Simon's book, I see that governing through crime will, like water, trickle down to the lowest levels. Microgoverning through Crime Illegal aliens, status crime, made local -- Prince William County, VA Resolution of the Board of Supervisors on Illegal Immigration (excerpts) · The board "has determined that illegal immigration is causing economic hardship and lawlessness" and that "illegal immigration may be encouraged by public agencies within the county by failing to verify immigration status as a condition of providing public services." · Under the resolution, "county police officers shall inquire into the citizenship or immigration status of any person detained for a violation of a state law or municipal ordinance, regardless of the person's national origin, ethnicity or race where such inquiry does not expand the duration of the detention." "In all such cases where a person indicates that he or she is not a citizen or national of the United States, the police department shall verify whether or not the person is lawfully present in the United States. . . . "If the person is verified to be unlawfully present in the United States, the police department shall cooperate with any request by federal immigration authorities to detain the alien or transfer the alien to the custody of the federal government." · No county employee may be prohibited from "sending, receiving or maintaining" information about the immigration status of any person or exchanging such information with any federal, state or local government for the purpose of determining eligibility for "any federal, state or local public benefit, service or license which is restricted . . . to persons who are not United States citizens or non-qualified aliens." <http://www.washingtonpost.com/wp- dyn/content/article/2007/07/05/AR2007070501845.html> Free speech, prohibition of, lack of vendor's license (Kensington MD): Kensington Tells Retiree to Button Up or Pay Up The left-leaning town of Kensington would seem fertile ground for Alan McConnell to peddle his little green buttons. "Impeach Him," the buttons state, and for months the 74-year-old has sold them for a dollar apiece at the town's Saturday morning farmers market. But things hardly have been easy for him lately. Three weeks ago, the retired mathematician was issued a trespassing warning, after he'd been told to leave the market. Last week, Kensington's mayor canceled the market, concerned that McConnell and "potentially aggressive" supporters of ousting President Bush could endanger safety there. And at 10:35 a.m. Thursday, a woman from the town and two Montgomery County police officers knocked on McConnell's door. "I'm sorry to be in a state of undress," he told them politely, standing in his underwear. "How long do you folks want to talk?" Ten minutes, McConnell was told. "I'll get dressed very quickly," he said, heading back to do so. "Thank you," one of the officers responded. When it was over, McConnell was left holding two documents: an updated trespassing warning and a citation charging him with selling merchandise at the farmers market without a permit. He is to stand trial or pay a $500 fine.... <http://www.washingtonpost.com/wp- dyn/content/article/2007/07/20/AR2007072002179.html> Activist Arrested In Dispute Over Hot-Button Sales At Public Market The 74-year-old retired mathematician who is fighting Kensington officials over his right to sell buttons urging President Bush's impeachment was arrested yesterday at a farmers market and charged with trespassing. Alan McConnell, who had been selling his "Impeach Him" buttons at the Howard Avenue market for about a half-hour without a permit, lay down on the pavement after Montgomery County police asked him to come with them. After McConnell failed to respond to a request that he "please stand up," four officers each grabbed one of his limbs and carried him to the front seat of a squad car.... <http://www.washingtonpost.com/wp- dyn/content/article/2007/07/21/AR2007072101235.html>
Jonathan Simon (jonathan-simon) Mon 23 Jul 07 12:30
Pardon for the interruption. We left SF for a 3 week trip to Germany on Saturday and I'm just beginning to get on top of the jet lag. First impression is that this is a society, remarkably, relatively free of governing through crime. There is a strong sense of comfort with diversity, trust (e.g., no gates leading to trams and trains, you are trusted to pay for the right ticket), and the German love for beer includes lots of people walking around, and riding the trams, with open containers. In the 1960s Germany had the highest imprisonment rate in Europe. The end of the Cold War and the institutionalization here of a strong belief in human rights seems to have produced a strong cultural resistance to governing through crime. Let me add a few comments to the last few posts. re 64: Yes its amazing how many people who purport to care about human rights like to joke about Scooter Libby dropping his bar of soap in jail etc. It speaks, I'm afraid, to a considerable internalization of mass incarceration. In an essay I wrote a few years ago I wondered out loud whether our culture would begin to find ways to use the massive surplus of cruelty our prison system was creating. This is one sign of such an adaptation. re 66: The prison arose precisely to deal with the increasing mobility of society. Earlier methods of trying to use family pressure to bring offenders to heal through security bonds and the like came to seem futile in a society of constant mobility. As the late great Caleb Foote (one of my teachers) described in his 1950s articles on vagrancy law and bail, jail and prison are ways of seizing the most alarming types of mobile subjects in our midst, disciplining them and containing them. Foucault called the prison an "anti-nomadic device." One of the problems with mass imprisonment and its continuing effects on released prisoners (through parole conditions) is precisely that it locks people into communities where they have too many facilitators for bad behavior, like drug abuse, and too few economic opportunities. This is true of rules that require parolees to remain in the county where they were arrested as well as laws that bar released prisoners from whole occupations (like barbers and health care workers). In some cases we in effect, bar people from working. Its hard to imagine a strategy more like to backfire and more opposed to basic American conceptions of freedom. 70 makes a parallel point about young sex offenders. If we put you up on the web as a predator, we are virtually assuring that you will be locked out opportunities. Now as I said a few posts ago, I do think publicity should be part of punishment, but not in ways that prevent any hope for change (rehabilitation) and not for juveniles. 71 Good examples of what I think of as the downward drift of governing through crime. We may start out worried about murderers and rapists, but the ceaseless quest for security soon demands action against petty offenders. Likewise we come to associate any kind of activism with the sort of aggressiveness that predicts criminality. I return then to a theme of hope. There is a different model of security, one founded on trust, mutual aid, and responsible citizenship in which we seek to create a sense of safety in our collective ability to produce and reproduce the conditions of mutual thriving rather than private efforts to wall out those we fear combined with harsh public justice. This spirit is embodied in Franklin Roosevelt's powerful Four Freedoms speech which he gave a state of the Union speech in 1941. I think I've referred to it already in our conversation (or an earlier colloquy with Doug). Seeking to mobilize the American people behind a confrontation with Fascism he said this: "The first is freedom of speech and expression -- everywhere in the world. The second is freedom of every person to worship God in his own way everywhere in the world. The third is freedom from want, which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants -- everywhere in the world. The fourth is freedom from fear, which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor -- anywhere in the world. That is no vision of a distant millennium. It is a definite basis for a kind of world attainable in our own time and generation. That kind of world is the very antithesis of the so-called new order of tyranny which the dictators seek to create with the crash of a bomb. To that new order we oppose the greater conception -- the moral order. A good society is able to face schemes of world domination and foreign revolutions alike without fear." You can read it in its entirety at: http://www.americanrhetoric.com/speeches/fdrthefourfreedoms.htm Its quite a contrast to Bush's rhetoric in the war on terror, and quite a contrast to the way we imagine security from crime.
Jim Thomas (jthomas) Tue 24 Jul 07 13:36
Not being one to be dissuaded from chiming in having not read the book, not having fully digested all the substance in this topic, and coming in a few weeks late and a couple of dimes short....here goes anyway. The summaries of Governing through Crime motivated me to order it. It sounds like an essential book. From what I'm getting from the summaries above, the central points: 1) The politics of fear (of crime) drives too much public policy. 2) Prisons suck. 3) We need to restructure how we define and process offenders, and how we integrate them back into the community. 4) Long-term solutions should be structural and not simply minor tweaks of policy. #72 provides an initial response point, especially the last sentence: "Its quite a contrast to Bush's rhetoric in the war on terror, and quite a contrast to the way we imagine security from crime." Indeed. And most politicians as well. David Altheide makes a nice argument in Terrorism and the Politics of Fear: It trades on conventional beliefs and taken-for-granted images about "them," those not quite like us. Substitute "crime" for "terror," and it's easy to see how the media and politicians play on public beliefs and images to promote fear of crime, that in turn feeds enhanced sentencing, expanded crimes, increased use of prisons, public animosity toward prison programming, and zero-tolerance for some behaviors. Sex offender registries are a good example of fear-driven, ineffective, and costly policies. The irony is that rehabilitation, re-entry, and other programs to help prisoners are alive and well in the same system that creates obstacles for them. ((Side note: A warden of a maximum security prison in Illinois created some cost-effective programs for prisoners. Some administrators disapproved, and "promoted" her to a newly-created position of developing programs in adult maximum security prisons. Nice new office, nice title. No funding for it. She retired shortly after). A comment in a post above reminding us that, "If it bleeds, it leads" is just part of the problem. Conventional tv media formats and logic adds to the problem. Crime is easy to cover, requires little investigation by staff, can be easily summarized on good v. evil with a bit of dramatic footage,and fits nicely in a 30 second time slot. This makes crime reporting easy to over-simplify and distort. This in turn feeds politicians' hyperbole in building on fears of predators living among us. Our culture drive fear as much as fear drives us, so the solution isn't simply one of changing the media. We've all heard the view that, because the recidivism rate is so high, prisons "don't work." Dodging, for now, the question of "what do we mean by 'works?'," a short answer is that prisons cannot "stop crime." Post-release issues are under-addressed. The problem of placing offenders back with their facilitators seems insurmountable, especially given parole/probation restrictions. An earlier comment that prison rape is one of the biggest fears of new prisoners might be a tad over-stated (SPR reports notwithstanding). It's a real fear, it happens. But, it might be a bit over-emphasized as part of the "prisoners as animals" sydrome. In maximum security prisons, it can be an issue, but the larger problem is other kinds of predation that are difficult to avoid unless one has something to offer or is well-connected. Sexual assault and predation decrease dramatically for prisoners in lower-security institutions. It's preaching to the choir, I suspect, to say that most prisoners are normal people who screwed up, often badly, but are still decent people. Even while in prison. Prisons might be called "colleges of crime" not because prisoners learn better ways of committing a crime (how much skill does it take to shoot-up, knock off a 7-11, or drive after drinking?), but because the adaptation techniques required aren't those that contribute to healthy socialization or are marketable on the streets. Especially in maximum security prisons, manipulation and aggression are two useful coping mechanisms. Or, for the "weak," withdrawal and passivity. One of the worst aspects of prison is the boredom, monotony, and lack of healthy environmental stimulation. That's one reason why programming is useful. It's not just good for the prisoners, it's good for staff. There's an adage: "Security begins with programming." Why? I have a good acquaintance, the warden of one of the tougher US prisons, who keeps saying, closely paraphrased, "Give me everthing you can to give to these men. The more I give, the more I can take away." For the most part, it's worked well. As long as fear drives crime and carceral policy, it remains difficult to sell legislators on funding prison programs. In Illinois, the maximum security prisons are virtually programless with the exception of GED, a few prison industries that employ a trivial percentage of the populations, and some pre-release programs. Don't even get me started on the super-max.
Jack King (gjk) Tue 24 Jul 07 14:01
Add: 5) the federal prison gulag really, really, REALLY sucks, and has more Catch-22's than Yossarian's Army Air Corps. I've got a parole-eligible Canadian citizen client who they keep moving from FCI to FCI and his mail never catches up with him, and they called his parole/recission hearing today (scheduled by the U.S. Parole Commission) at Lewisburg FCI but by then the Bureau of Prisons had transferred him again -- to Loretto FCI at the other end of the state of Pennsylvania. And my contact at the parole commission is sad that the BOP keeps moving him from facility to facility, where he's held in lockdown 23 hours a day and no phone privileges because he's always a "new" inmate (every time you get transferred to a new facility, you are held in lockdown until you're "reclassified"). Sorry to rant, but I was supposed to be at his hearing up in PA yesterday, which didn't happen although he was on the docket, and now it looks like he may be going to Terre Haute with the rest of the dangerous aliens who have never even been accused of anything violent, theyr'e just you know the wrong color and wrong citizenship. And I'll have to pay all the travel out of my own fucking pocket, thank you, because I'm pro bono. Fucking feds. Okay, back to the discussion.
Michael E. Marotta (mercury) Tue 24 Jul 07 14:46
re # 63 from the Guest Host "What other area of our lives can you think of where the advanced technology of the late 18th century remains the advanced technology of the early 21st century ..." Answer: schools. From K-MA it is a matter of sitting passive in rows and columns. The only time I did NOT experience this was in a college class in 19th Century Intellectual History with me, the prof, and one grad student. We actually talked to each other, with the expert as the guide. Other than that, education is totally what Horace Mann envisioned: Prussian. Both "Deutschland Ueber Alles" and the "ABC Song" are Mozart tunes. We call passive rows and columns of listeners "education." Similarly, locking someone up for a period of years on the one hand brutalizing them and on the other feeding and sheltering them (while their victim goes unremediated) is supposed to be "justice." Both public education and public justice are in the Soviet Agriculture mode. For an alternative WITHIN THE SYSTEM, consider community corrections. It has been said here by others (including Dr. Simon) that putting offenders back in touch with their facilitators is a bad idea. Their victims also do not need them around. My suggestion is to put them into a DIFFERENT community. You could have all the same structures for parole and probation, etc., but the offender would be out of a dangerous environment.
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